Usurpation of authority

The actions and statements of Provincial Administrator Raul Banias, M.D., regarding the apprehension of several nylon shell divers for alleged illegal fishing in the town of Concepcion, Iloilo betrays an arrogance aggravated by gross ignorance of the law and usurpation of authority.

Banias, who was municipal mayor of Concepcion for nine years, claims that the permits granted by the municipal government to these nylon shell divers are invalid on the ground that the ordinance upon which the authority was based is pending review in the Sangguniang Panlalawigan of Iloilo.

Banias insists that the ordinance is not yet in full force and effect until such time the provincial board ratifies it or renders it invalid in whole or in part.

This statement has made Banias, who also served as Presidential Assistant (in other words, GMA’s factutom in Western Visayas) the object of ridicule among SB members who had just come from a three-day convention of the Philippine Councilors League (PCL) in Manila yesterday at the Ninoy Aquino International Airport II.

Banias is wrong, wrong and wrong. It makes him look like a stupid fool in the eyes of municipal legislators who know their work better than he does.

First, a municipal ordinance takes effect, as mandated by RA 7160, after a 10-day period of its posting in five conspicuous places in the LGU. The same law directs the SB secretary to transmit the ordinance to the Sangguniang Panlalawigan three (3) days after its approval for review. If, after 30 days, no action is taken by the provincial board, the same is presumed effective, therefore valid.

The ordinance was enacted on Jan. 31, 2011. The posting and submission to the provincial board for review were done as well. The 30-day period had elapsed. So how can Banias say that the ordinance is not yet valid and effective? Actually, the municipal government can already implement an ordinance after the 10-day posting period. If and when the provincial board invalidates it, then such implementation will have to stop.

Second, the municipal sanggunian has the power to amend or even repeal completely any ordinance it had enacted before. Banias claims that this new ordinance violates a previous ordinance designating the Concepcion Bay as fish sanctuaries. He makes it appear that the old ordinance is carved in stone, and could not be changed in whole or in part.

What the new ordinance did was define in terms of latitude and longtitude parts of the Concepcion Bay where nylon shell harvesting was permitted. Unlike in the previous administration, the new ordinance seeks to regulate the manner and volume by which the marine product is harvested. It provides safeguards that there is no indiscriminate harvesting. It also mandates that the municipality exacts fees for the privilege to engage in nylon shell harvesting.

By Banias’s own admission, commercial-scale harvesting of nylon shells has been going on for three years. In other words, when his friend and ally Betsie Salcedo was municipal mayor, nylon shell harvesting was already a lucrative business in the municipality. He could have added that SB member Sandy Boy Salcedo, son of then Mayor Betsie Salcedo, controlled the business, with not a single centavo going into the coffers of the municipality.

At the time, the old ordinance Banias was talking about was already in full force and effect. Why didn’t he make as much as a whispered protest? He didn’t consider it wrong that the son of the mayor was extracting nylon shells. Of course, one can’t expect Banias to confess that it was he who discovered the money in nylon shells and pionered in the business just before the 2007 elections. When Betsie Salcedo took over the LGU, the business went to her son.

The idea to regulate the extraction and harvesting of nylon shells came to the mind of the new municipal mayor, Milliard Villanueva, shortly after he assumed office. He looked at the financial reports of the LGU and saw that a potential revenue earner for the town was being ignored and neglected. Villanueva imposed fees for the extraction and harvesting of the shell. To his surprise, the town generated P330,000 in just six months! For a cash-strapped municipality, that was a lot of money.

But Villanueva didn’t just collect fees from nylon shell harvesting operators. He asked for help from the University of the Philippines in the Visayas (UPV) fisheries college and the Bureau of Fisheries and Aquatic Resources (BFAR) in conducting surveys on where the nylon shells grew in abundance. These technical experts also advised the municipal government on the proper harvesting of the shell to prevent over-extraction. The input from UPV and BFAR became the basis for the new municipal ordinance which likewise defines the metes and bounds of the harvestable areas.

Banias knows that this ordinance will make it hard for Sandy Boy Salcedo to control the business. Unlike in the last term, any fisherman can now apply for a license to engage in nylon shell harvesting. For Banias, this is bad for their business interests. The new scheme of regulated harvesting of nylon shells had to be dismantled, he must have decided.

Third, Banias betrays more of his ignorance when he told Bombo Radyo Iloilo anchorman Don Dolido that the 30-day period prescribed in the Local Government Code stopped running when a Sangguniang Panlalawigan committee chaired by Board Member Suzette Alquizada conduced a hearing on an opposition to the ordinance filed by a barangay fisheries management council in Concepcion.

How ridiculous can Banias be? The review power of the Sangguniang Panlalawigan is confined only to the face of the document. It will only determine whether or not the Sangguniang Bayan acted within its powers in enacting the ordinance. That’s why as a matter of procedure, municipal ordinances are referred to the Provincial Legal Office for review and comment. “Action” in the context of the Local Government Code doesn’t refer to conducting hearings; it refers to ratifying or invalidating it.

Morepver. a “protest” is not proper in the review process. If somebody wants to challenge the validity of the ordinance, he or she will have to go to court. The only grounds that an ordinance can be invalidated in whole or in part is when the municipal council had acted beyond its powers to legislate, or termed “ultra vires”, or that the ordinance is contrary to law, public order and morals. The so-called “protest” is a most stupid, stupid idea.

Fourth, Banias said he ordered the arrests of the so-called violators because their activities violated the old ordinance. He is citing a municipal ordinance as basis for the action of the Sangguniang Bayan. For heavens sake, has anybody told Banias that the enforcement of municipal ordinances is a primary responsibility of the municipal mayor?

If, for the sake of argument, Mayor Villanueva was negligent in the performance of his duty, then the proper remedy is haul him before the proper administrative body for the appropriate sanction. The provincial government, and particularly the provincial administrator, has no business meddling in the affairs of a municipality. Perhaps Banias hasn’t heard of the term “local autonomy” yet.

It is clear that Banias acted with stupid arrogance and usurpation of authority. And he can’t even hide his conflict of interest. Why, of all municipalities, he is showing inordinate interest in the affairs of Concepcion? He is supposed to be running a province, not play in the school yard called Concepcion.

Well, it might be told that Banias made a fortune in the fish business when he was vice mayor and then mayor of Concepcion. Maybe he’s just throwing his weight around to make sure his business interests aren’t constricted. He has shown that he’s willing to abuse his position to do that.

7 Responses to Usurpation of authority

The nylon shell is a new phenomenon in Concepcion. At the time the bay was declared by the ordinance a “fish sanctuary” the bi-valve was unheard of yet. The new ordinance which was enacted to update the old one, still considers the area a protected area where commercial extraction of demersal and migratory fish is prohibited.

The new ordinance does not prohibit but regulates the diving of nylon shells to ensure sustainability and protect its fishers who are given priority in the issuance of permits over non-residents of Concepcion.

Somebody has filed a petition to the SP to annul the new new ordinance. SP Suzette Tenefrancia at the first hearing declared she would dismiss the petition both on procedural and substantive grounds. The petition is neither subscribed nor verified.

Second, Only the proper court (RTC, CA and SC), not the SP can declare an ordinance illegal or unconstitutional.

If the SP reviewing committee had not yet finished its review of the ordinance, that does not render its substance invalid. Pardon this repetition, harvesting of nylon shells is not illegal just because the ordinance regulating it has not yet gone out of the SP reviewing body.

Thank you for the legal perspective, Atty. Pet. I challenge PA Banias to prove me wrong. He could get a legal opinion from the Provincial Legal Office if he wants.
Sent from my BlackBerry® wireless handheld

What PA Banias did was to unduly infringe and curtail on the power of the Municipal Government of Concepcion in the enforcement of its ordinances and manage its resources. This is classic usurpation of authority.